Citation Nr: 21064887
Decision Date: 10/21/21	Archive Date: 10/21/21

DOCKET NO. 17-28 588A
DATE: October 21, 2021

ORDER

Entitlement to service connection for obstructive sleep apnea is denied.

Entitlement to an initial rating in excess of 10 percent for right knee degenerative joint disease (based on painful/limited motion on flexion) is denied.

From initial entitlement prior to May 6, 2014 a compensable rating for right knee degenerative joint disease based on limited extension is denied; as of May 6, 2014 a staged 20 percent rating for right knee degenerative joint disease based on limited extension is granted; and a rating in excess of 20 percent disabling is denied.  

Entitlement to an initial rating in excess of 10 percent for left knee degenerative joint disease (based on painful/limited motion on flexion) is denied.

From initial entitlement prior to May 6, 2014, a compensable rating for left knee degenerative joint disease based on limited extension is denied; as of May 6, 2014 a staged 10 percent rating for right knee degenerative joint disease based on limited extension is granted; and a rating in excess of 20 percent disabling from January 18, 2021 is denied.

From initial entitlement prior to May 6, 2014, a 10 percent rating for right ankle degenerative joint disease is granted, and a rating in excess of 10 percent disabling is denied. 

From initial entitlement prior to May 6, 2014, a 10 percent rating for left ankle degenerative joint disease is granted, and a rating in excess of 10 percent disabling is denied. 

From initial entitlement prior to March 30, 2017, a 20 percent rating for status post removal ganglion cysts is granted and a rating in excess of 20 percent disabling is denied.

REMANDED

Entitlement to service connection for gout involving multiple joints, to include the left shoulder, bilateral elbows, bilateral hands, all fingers, bilateral knees (other than the already service connected degenerative joint disease), bilateral ankles (other than the already service connected degenerative joint disease), bilateral feet, and all toes, is remanded.

Entitlement to service connection for a right shoulder disorder to include gout and other non-gout related disability is remanded. 

FINDINGS OF FACT

1. The preponderance of the evidence is against finding that obstructive sleep apnea began during active service, or is otherwise related to an in-service injury or disease.

2.  The Veteran's right knee degenerative joint disease is manifest by painful flexion that is not shown to be less than 60 degrees even with consideration of repetitive use and flareups.  

3. From initial entitlement prior to May 6, 2014 the Veteran's right knee degenerative joint disease was shown to have full extension; as of May 6, 2014 his extension was limited to 15 degrees but no more.

4. The Veteran's right knee degenerative joint disease is manifest by painful flexion that is not shown to be less than 60 degrees even with consideration of repetitive use and flareups.  

5. From initial entitlement prior to May 6, 2014 the Veteran's left knee degenerative joint disease was shown to have full extension; as of May 6, 2014 his extension was limited to 10 degrees but no more, and as of January 18, 2021 his extension was limited to no more than 15 degrees.

6. From initial entitlement prior to May 6, 2014 the Veterans right ankle degenerative joint disease of the right ankle was manifested by a finding of arthritis of a major joint with evidence of painful motion, but without incapacitating exacerbations or with marked limitation of motion.

7. From initial entitlement prior to May 6, 2014 the Veterans left ankle degenerative joint disease of the right ankle was manifested by a finding of arthritis of a major joint with evidence of painful motion, but without incapacitating exacerbations or with marked limitation of motion.

8. From initial entitlement prior to March 30, 2017 the evidence shows 3 or more painful scars, but does not show 5 or more painful or unstable scars nor of scarring of the head, face, or neck, is not deep and nonlinear, and is not associated with underlying soft tissue damage, and not cover an area or areas of 144 square inches or greater.

CONCLUSIONS OF LAW

1. The criteria for service connection for obstructive sleep apnea have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for a rating in excess of 10 percent for right knee degenerative joint disease with limited flexion have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5210-5260.

3.  From initial entitlement prior to May 6, 2014 the criteria for a compensable rating for right knee degenerative joint disease based on limited extension are not met; as of May 6, 2014 the evidence supports a 20 percent rating for right knee degenerative joint disease based on limited extension; and a rating in excess of 20 percent disabling for right knee degenerative joint disease with limited extension have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5210-5261.

4. The criteria for a rating in excess of 10 percent for left knee degenerative joint disease with limited flexion have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5210-5260.

5. From initial entitlement prior to May 6, 2014 the criteria for a compensable rating for left knee degenerative joint disease based on limited extension are not met; as of May 6, 2014 the evidence supports a 10 percent rating for right knee degenerative joint disease based on limited extension; and as of January 18, 2021 a rating in excess of 20 percent disabling for right knee degenerative joint disease with limited extension have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5210-5261.

6. From initial entitlement prior to May 6, 2014, the criteria for a 10 percent rating for right ankle degenerative joint disease have been met, and a rating in excess of 10 percent disabling for right ankle degenerative joint disease have not been met.   38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5210-5271.

7. From initial entitlement prior to May 6, 2014, the criteria for a 10 percent rating for left ankle degenerative joint disease have been met, and a rating in excess of 10 percent disabling for left ankle degenerative joint disease have not been met.   38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5210-5271.

8. From initial entitlement prior to March 30, 2017 the criteria for a 20 percent rating, but no higher, for status post removal ganglion cysts with scarring have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118 Diagnostic Code 7804. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active military service from November 1993 to July 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA).  This decision granted service connection for residuals of ganglion cyst removal (right wrist) with a noncompensable (0 percent) initial rating assigned, granted service connection for degenerative joint disease (DJD) of the left and right (bilateral) knees with 10 percent initial ratings per knee, and also granted service for mild DJD of the bilateral ankles and assigned 0 percent evaluations.  The effective date of these initial ratings was December 8, 2011.   This rating also denied service connection for gout and service connection for multiple joint disorders, to include those of the bilateral shoulders, bilateral elbows, right wrist, bilateral hand, all fingers,  bilateral foot ankles and toes, all claimed due to gout.  The RO is noted to have listed the joint issues regarding the bilateral foot, ankle, toes, painful joints, all fingers, bilateral knees claimed as gout as a single issue, while the remaining joint issues were listed separate issues.  

In an April 2017 rating the RO granted staged increases for the left and right ankles to 10 percent disabling effective May 6, 2014, with the 0 percent rating remaining in effect prior to that date.  The Board has characterized these matters to reflect the staged increases.  

In September 2019 the Board remanded these matters.  In doing so, it listed all the joint issues as a single issue claimed as service connection for gout involving multiple joints with the exception of a right wrist disability which was separately remanded.  This separately remanded issue of entitlement to service connection for a right wrist disability (other than residuals of ganglion wrist removal (scar)) was later granted by the RO in an April 2021 decision, thereby removing this claim from appellate status. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The record currently before the Board contains no indication that the Veteran initiated an appeal as to the ratings or effective date assigned. Thus, this matter is no longer in appellate status. Grantham, 114 F.3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned).  

This April 2021 rating also granted separate service connection for limited extension of the bilateral knees, with a 20 percent rating assigned for this limited extension effective January 18, 2021.  As limited extension is part and parcel of the increased ratings for the bilateral knees based on arthritis with limited motion, the Board shall address this matter for the entire appeal period to determine whether a compensable rating is warranted prior to January 18, 2021 for the separately evaluated limitations of extension.  See VAOPGCPREC 9-2004 (Sept. 17, 2004).  

In a July 2021 rating a DRO decision granted service connection for a painful scar, residual surgical scar of the right wrist with a 20 percent evaluation effective March 30, 2017.  The Board finds this is part and parcel of the appealed decision of entitlement to a compensable rating for residuals ganglion cyst, as the original rating on appeal was for residuals of ganglion cyst based on the criteria for scars.  Thus it has recharacterized the issue to reflect the staged increase.  

The Board has separated the issue of service connection for a right shoulder disorder from the other gout issues due to evidence of a preexisting right shoulder injury and a post-service non-gout related right shoulder injury.  

This matter is returned to the Board for further consideration.  

1. Service connection for obstructive sleep apnea

The Veteran contends that service connection is warranted for obstructive sleep apnea (OSA).  He alleges that his sleep issues began in service.  In an October 2016 statement he reported that while stationed at Fort Dix he underwent a cardiac consult for chest pain, with sleep issues also noted.  

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.  The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

Service connection may be also established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995).

Service treatment records show no diagnosis of sleep apnea or any other sleep related disorder including no reference to sleep problems on entrance examination in August 1993.  In December 1998 the Veteran was seen for atypical chest pains that were recently occurring at night more frequently and keep him from going to sleep or waking him. He was diagnosed with palpitations and atypical chest pain.  No diagnosis of sleep apnea was made.  A November 2002 examination for reserves was likewise silent for any issues with sleep.  See 162 pg. STRs at pg. 10, 28, 144. See also 36 pg. STRs at pg. 7, 11.  

The earliest objective diagnosis of sleep apnea is shown in an October 2011 sleep study which diagnosed OSA with the history of the same noted.  See 4 pg. Medical Treatment record received 2/26/13.  Later, a September 2019 sleep study confirmed worsening OSA.  See Medical Treatment Records received 10/09/19 at pg. 1.

Evidence obtained in order to address this claim includes multiple VA examinations.  A December 2012 VA examination noted the presence of obstructive sleep apnea (OSA) with a history of diagnosis in 2011 after having a sleep apnea test done at a VA facility.  He currently treated with a CPAP machine and medication (Trazadone). No current findings, signs, or symptoms attributable to sleep apnea were noted and no etiology opinion was given.  

An October 2019 VA examination for OSA gave a history of it being diagnosed in the mid-1990s with a history of receiving complaints about his snoring. He was choking in his sleep. He woke up dizzy. He was really sleepy during the day. Symptoms persisted and he was sent for a sleep study in October 2011. It was positive for sleep apnea and he was started on a CPAP machine. Current symptoms included continued choking in his sleep despite using the CPAP machine. The examiner gave an opinion that OSA is due to an anatomical stress that decreases airflow through the oropharynx with the examiner stating that this is unrelated to a GI condition such as irritable bowel syndrome.  The Board notes that the Veteran has not claimed secondary service connection for sleep apnea and the examiner did not address direct service connection which had been requested in the Board's remand.  

A February 2020 VA examination gave a different diagnosis date for OSA, wherein the Veteran reported that he was diagnosed with obstructive sleep apnea in 2014 and has been using CPAP since then.  He complained of daytime sleepiness and poor sleep, only sleeping 3.5 hours per night with frequent awakening including due to pain and GERD. The Veteran asserted that his sleep apnea began in the late 1990s, around 1998 and claimed he had a sleep study done in service at Fort Dix, New Jersey.  He alleged that he snored at night and was picked on by the other soldiers and also was placed on guard duty while everyone else was sleeping so his snoring would not interrupt everyone else's sleep. He was most recently seen by a medical professional for his snoring in September of 2019 with a sleep study done that showed severe sleep apnea.  The examiner noted findings including a BMI in the obese range measured in January 2020 and a September 2019 sleep study confirming severe sleep apnea.  

The February 2020 examiner gave an opinion that it is less likely than not that the Veteran's current obstructive sleep apnea (OSA) was incurred in or is related to the Veteran's active duty service.  In the rationale the examiner pointed to the recognized signs and symptoms of OSA, including those noted by Web MD and also pointing to the Mayo clinic's statements of signs and symptoms of sleep apnea.  These include: "Signs and symptoms of obstructive sleep apnea include: Excessive daytime sleepiness. Loud snoring. Observed episodes of stopped breathing during sleep. Abrupt awakenings accompanied by gasping or choking. Awakening with a dry mouth or sore throat. Morning headache. Difficulty concentrating during the day."  The examiner noted that such signs were not shown until years after service and pointed to post service records, including the November 2002 records, addressing noncardiac chest pain, with the Veteran not reporting any symptoms consistent with sleep apnea per Web MD. The sleep apnea findings under Web MD include "Loud snoring. Occasionally waking up with a choking or gasping sensation. Sleepiness or lack of energy during the day. Sleepiness while driving. Morning headaches. Restless sleep. Forgetfulness, mood changes, and a decreased interest in sex."  The examiner referred to records showing such sleep apnea symptoms decades after service in the rationale.   

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.

The Board concludes that, while the Veteran has a diagnosis of OSA, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease.  

In making this determination the Board accepts the 2020 VA examiner's opinion, that is supported by adequate rationale, finding that the STRs, which include the  December 1998 record treating atypical chest pain with sleep problems, did not meet the recognized criteria for signs of sleep apnea.  The examiner cited to medical treatise evidence to support this opinion.  This opinion is not contradicted by any other competent medical evidence, which shows a formal diagnosis of sleep apnea many years after service.  The October 2019 examination gave a negative opinion that sleep apnea was not related to a service connected irritable bowel syndrome, but the Board notes that secondary service connection was never alleged by the Veteran.  

While the Veteran believes his sleep apnea began in service and is related to the 1998 treatment for chest pain, he lacks the medical expertise to render a nexus opinion, as the matter involves medical complexity beyond the realm of lay observation.  The preponderance of the evidence weighs against findings that in-service sleep apnea occurred or that the current diagnosis is otherwise related to active service.  Accordingly, the claim is denied.

Increased Rating

Right knee and left knee disability legal criteria and factual background

Disability evaluations are determined by applying a schedule of ratings which is based on average impairment of earning capacity based on the specific diagnostic codes identifying the various disabilities. 38U.S.C. §1155; 38 C.F.R. Part 4.

Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38C.F.R. §4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

For musculoskeletal disabilities, a higher rating may be based on greater limitation of motion due to pain on use, including during flare-ups. 38C.F.R. §§4.10, 4.40, 4.45; see also DeLuca v. Brown,8 Vet. App. 202 (1995). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and therefore, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. See38C.F.R. §4.59.

Pursuant to Diagnostic Code 5010, arthritis, due to trauma, substantiated by X-ray findings is to be rated as arthritis, degenerative. Pursuant to Diagnostic Code 5003, arthritis, degenerative (hypertrophic or osteoarthritis), established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of involvement of 2 or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of 2 or more major joints or 2 or more minor joints warrants a 10 percent evaluation. See 38 C.F.R. § 4,71a , Diagnostic Code 5003.

The Board notes that the criteria for rating musculoskeletal disabilities were amended during the pendency of the appeal, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020).

Diagnostic Code 5010 was revised to contemplate post-traumatic arthritis, which is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. Part 4 - Schedule for Rating Disabilities, § 4.71a Schedule of ratings musculoskeletal system, 85 Fed. Reg. 230, 76460 (November 30, 2020).

Effective February 7, 2021, Diagnostic Code 5003 was revised as follows: Degenerative arthritis, other than post-traumatic: Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent disability rating is warranted. With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, a 10 percent disability rating is warranted. Note (1): The 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2): The 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. 38 CFR Part 4, Schedule for Rating Disability: Musculoskeletal System and Muscle Injuries; Correction, 85 Fed. Reg. 249, 85523 (December 29, 2020).

Regarding knee claims, a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257 or 5258/5259. See VAOPGCPREC 23-97. For example, when a knee disorder was already rated under DC 5257 (addressing lateral instability), a separate rating may be warranted if the Veteran's knee also shows limitation of motion which at least meets the criteria for a zero-percent rating under DC 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more).

Moreover, a separate rating could also be warranted under 38C.F.R. §4.59, based on x-ray findings of arthritis with painful motion. See VAOPGCPREC 9-98; see also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). In addition, the General Counsel has also held that separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint. VAOPGCPREC 09-04.

When a law or regulation changes during the pendency of an appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (May 23, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (May 23, 2000); Kuzma, 341 F.3d 1327.

The Veteran filed his claim of service connection for a right knee and left knee disability on December 8, 2011. Service connection was granted for right knee and left knee disorders of DJD with an initial evaluation of 10 percent disabling assigned for each knee under the criteria for arthritis/limited flexion under Diagnostic Codes (DC) 5010-5260.  He was later granted service connection for limitation of extension of each knee under DC 5003-5261 with a 20 percent rating assigned for each knee effective January 18, 2021.  However, the RO must consider whether a compensable rating based on limited extension for each knee is warranted during the appeal period prior to January 18, 2021.  

The Veteran has limitation of motion in both knees and the basis for his compensation is DC 5260 and 5261, which were unchanged in the new regulations.

Under Diagnostic Code 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a , Diagnostic Code 5261.

Under Diagnostic Code 5260, leg flexion limited to 60 degrees warrants a noncompensable rating. Leg flexion limited to 45 degrees warrants a 10 percent rating. Leg flexion limited to 30 degrees warrants a 20 percent rating. Leg flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a , DC 5260.

Normal flexion of the knee is to 140 degrees, and normal extension of the knee is to 0 degrees. 38 C.F.R. § 4.71, Plate II.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a ; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011).

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint."

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

Evidence throughout the pendency of this claim includes multiple VA examinations of the knees undertaken in December 2012, May 2014, January 2020, and January 2021 (received in February 2021) to address the severity of the service-connected DJD of the right knee and left knee. Although adjudicated separately, due to the examinations and records tending to address the knees together, the Board shall first address the evidence addressing both knees.  These examinations repeatedly showed findings that revealed pain of the left and right knees that interfered with standing and disturbances of locomotion.   

Repeatedly, these examinations showed no findings in either knee of muscle atrophy, or ankylosis.  There was no recurrent subluxation or persistent instability. No other tibial/fibial impairment such as recurrent patellar dislocation, shin splints (medial tibial stress syndrome), stress fractures, or any other tibial or fibular impairment were shown. Joint stability testing was also repeatedly normal in all these examinations. There was also no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by amputation with prosthesis.  His muscle strength in both knees was either 5/5 or no less than 4/5 in these examinations.  He also had no evidence of any meniscal conditions or surgical procedures for a meniscal condition or other surgery noted in the examinations, with the exception of the January 2020 VA examination which noted that on right side and left side he had a meniscus condition with frequent episodes of joint locking, joint pain. On the right side, he had meniscectomy with large complex meniscal cyst on January 3, 2018. The frequency of locking occurred after prolonged sitting or standing in which right knee is forced out of position in order to move right knee joint. The repetitive use causes pain. The left knee had a history of arthroscopic surgery on March 10, 2017.  Regarding assistive devices, he used a cane as noted in the May 2014 VA examination, and a knee braces and walker "regularly"  in the January 2020 VA examination, but was not noted to use any assistive devices in the first examination in December 2012 or the most recent examination in January 2021.  

Regarding flareups, he denied any in the December 2012 examination for either knee and there was no impact on his ability to work. In the May 2014 examination the examiner stated that there really is no way to predict functional ability during a flare-up when it is not witnessed, and again his knees were said to have no impact on his ability to work.  He reported in the January 2020 examination to have flareups in the right and left knees with joint pain and popping about 1-2 times a day lasting 1 to 2 hours.  Functionally he was unemployed with 0-1 week work time lost in last 12 months.  The functional status of bilateral degenerative knees caused joint pain and weakness with lack of endurance.  In the January 2021 examination his bilateral knee disability and flareups were attributed to gout, with frequency of flares described as twice a month in one of the joints, lasting 1-2 weeks with severe pain, swelling, warmth and redness.  The functional impact was difficulty with prolonged standing, walking, and using stairs. 

Regarding the ranges of motion, all the examinations repeatedly showed his flexion both in the right and left knees to be greater than 60 degrees (noncompensable) and 45 degrees (10 percent rating), even with consideration of painful motion, repetitive motion and flareups.  Of note the ranges of motion of both his left and right knees after 3 repetitions was at worse 0-90 degrees in the December 2012 VA examination, with consideration of contributing factors of disability of less movement than normal, pain on movement, and excess fatigability.  His flexion was at worst 100 degrees bilaterally in the May 2014 examination, when considering that pain began at 100 degrees in both knees, with no additional loss on flares or repetitive motion noted.   The January 2020 VA examination noted that his ranges of motion were done during a flareup, with his right knee showing flexion to 80 degrees after 3 repetitions and his left knee showing flexion to 70 degrees after three repetitions. He had evidence of pain on passive motion in both knees.  Most recently in January 2021, his worst motion on flexion was shown to be 70 degrees for the right knee during flareups and also 70 degrees for the left knee during flareups.  

Regarding extension his December 2012 VA general examination revealed full normal extension at 0 degrees bilaterally with no pain or changes on repetitive motion, and no flareups were said to impact his knees function in this examination.   However, the May 2014 VA examination showed limited extension of 10 degrees with painful motion noted at 15 degrees for the right knee.  He had 10 degrees extension with pain at 10 degrees for the left knee.  There were no changes in either motion on repetitive use.   The January 2020 VA examination again showed full normal extension bilaterally including on repetitive motion and flareups, although pain was noted on extension but did not result in functional loss in either knee.   He had evidence of pain on passive motion in both knees.  Later, in January 2021 the Veteran's extension of his right knee was noted to be estimated to be limited to 15 degrees during flareups although it was 0 degrees including after 3 repetitions. The extension of his left knee was also estimated to be limited to 15 degrees during flareups although it was 0 degrees including after 3 repetitions.  His passive and active motion were the same.  For both left and right knees there was evidence of pain on weight bearing, active motion, and passive motion.

Radiographic findings throughout the pendency of this appeal confirm the presence of DJD in the right knee and left knee including X-rays of the left and right knees done in April 2012 which showed femorotibial compartment degenerative changes noted as mild on the right and moderate on the left, without focal joint erosion or radiographic evidence of inflammatory or erosive arthritis such as gouty arthritis in either knee.  An April 2013 MRI of the left knee diagnosed moderate tricompartmental arthritis with joint effusion, an AHLM root macerated tear and patella tendon insertion moderate tendinosis without tear. Degenerative changes for the left and right knees were also noted in X rays in August 2013, June 2014, and February 2016.  Additionally an October 2013 MRI right knee found no meniscal tear but diagnosed degenerative changes.   In January 2016 X-rays of the right knee yielded minimal degenerative changes.  A March 2016 MRI of the left knee was noted to confirm 3 compartment osteoarthritis and an associated complex tear at the anterior horn of the lateral meniscus.   

In addition to examinations the treatment records in VA treatment records, private records and SSA records include ongoing issues with both right and left knee symptoms.  A May 2012 record noted that his knees were giving him trouble and had swelling and pain, which was worse with activity.  He had a 2+ effusion on the left and was tender to palpation in the medial joint line with pain on McMurray testing but with stable ligaments on the left and right. X-rays showed medial compartmental and osteoarthritis of the left knee and a small medial osteophyte and mild narrowing of the right knee. He was assessed with bilateral medial compartment arthritis, left greater than right.  Plans included antiinflammatory, aspiration and injections and to get fitted with a knee brace on the left.  On follow up in June 2012 he continued with swelling and pain, with findings of effusions and tenderness bilaterally, as well as ongoing pain on McMurry and patellar grind.  He was assessed with medial compartment arthritis both knees.  Treatment options were discussed including medications, physical therapy, steroid injections, bracing and possibly surgery. In April 2013 he was treated for left knee pain and 9 days of swelling after a slip and fall injury on the job in April 2013.  An assessment of left knee traumatic effusion with internal derangement was made, and again mild tricompartmental OA was noted. A few days later the same month, the swelling went down but the pain persisted, and he needed to be medically cleared before being allowed back to work.    

An October 2015 PM&R followup noted both knees to be tender to palpation bilaterally along the patella tendon and lateral joint line.  However, he had full range of motion bilaterally in the lower extremities.  Motor examination was grossly 5/5 in the bilateral lower extremities.  On testing crepitus was noted on range of motion without laxity appreciated with various about the stress, but with normal gait.  He was assessed with left knee DJD and low grade strain of the MCL and right knee and DJD/loose body.   

Rheumatology records following gout include knee complaints such as tenderness to palpation and effusion bilaterally, right worse than left, in November 2015 and March 2016.  May 2016 treatment records including an orthopedic consult assessed bilateral knee DJD with a left knee lateral complex tear shown on MRI. Examination of both knees showed no swelling or effusion, with intact range of motion from 0-110 degrees.  Different treatment options had been tried with minimal effect including physical therapy, braces, and injections.  Plans were made for him to undergo an explorative arthroscopy for meniscectomy and chondroplasty of the left knee planned later the same month.  Another May 2016 record which noted 3 compartment left knee OA noted his left range of motion was 0-125 degrees with crepitance, but no effusion and pain with lateral.  In June 2016 he was seen for pain and swelling in left knee of moderate severity, worsened by standing, walking and flexion and relieved by lying down and prescription medication.  Examination showed left knee moderate tenderness and severe swelling and limited range of motion due to pain and weakness (diminished flexion) and medium sized joint effusion present.  

Later in August 2016, the May 2016 surgery was noted to have been canceled due to hyperglycemia.  An August 2016 ER record addressed right knee pain and swelling which started about 1 week ago without injury and was of moderate severity with swelling but no redness.  He was assessed with acute idiopathic gout involving the right knee.  Right knee pain was again treated in October 2016 with the history of gout noted, and findings of moderate tenderness and swelling in the patella with laxity.  His right knee range of motion was normal. CT findings from October 2016 diagnosed tricompartmental OA with moderate joint effusion. 

In March 2017 the Veteran underwent a left knee arthroscopy with shaving chondroplasty, partial lateral meniscectomy for a left knee lateral meniscus tear and bicompartmental arthritic changes. A few weeks postoperative in March 2017 he was still having pain and stiffness with a preoperative motion of 0-100 degrees.  His pain was worse than before surgery.  In August 2017 several months after his surgery, he reported his knee continued to have a lot of swelling and stiffness and had been trying to get therapy since surgery. He said he would like to be able to return to fishing and other normal activities. He has been using a cane to walk with for a long time even before surgery. On examination he had moderate pain at times and walked with a single point cane with a mildly antalgic pattern. On active range of motion his right knee had 0-95 degrees while his left knee was 8 degrees short on extension and 55 degrees flexion supine, and 80 degrees flexion sitting.  In September 2017 physical therapy note, his active range of motion for his right knee had 0-102 degrees while his left knee was 6 degrees short on extension and 95 degrees flexion supine, and 105 degrees flexion sitting. This record noted complaints of a sandpaper sensation at times with movement, no improvement in pain and more swelling in the left than the right.  

On January 25, 2018 he was seen in physical therapy after a right knee meniscectomy reportedly conducted on January 3, 2018.  He reported that he was still having stiffness and swelling and had been using a cane to walk for 5 years for his knee and back.  On examination his right knee range of motion was 5 degrees short on extension and 75 degrees flexion while the left knee had full extension of 0 degrees and 105 degrees flexion.  He was assessed as status post one month right knee meniscectomy with limited motion and strength.  Plans included range of motion and strengthening exercises for the right knee.   An April 2018 kinesiotherapy consult for pain in multiple joints noted limited active motion including his knee and other joints, with a knee brace and had 4/5 strength in both extremities.  A May 2018 record noted crepitus with knees range of motion.  

A September 2017 SSA disability evaluation noted arthritis in multiple joints including his knees, with examination noting he walked with a normal gait and required no handheld assistive device.  He appeared stable in station and comfortable seated.  Examination of his lower extremities showed No tenderness, warmth, swelling, fluid, laxity or crepitus of knees, ankles, or feet.  His range of motion for both knees was 0-150 degrees bilaterally.  

Treatment records from 2019 addressing gout flareups included reports of flares in both his knees, including in January 2019, and in March 2019 when he was reported to have failed injections with pain more laterally in both knees and reports of pain negotiating stairs, especially descending.  Occupational therapy records from August 2019 noted bilateral knee pain with patellofemoral pain syndrome and lateral meniscus tears, with the Veteran reporting that having his knee braces replaced provided some relief with pain on the outside of the knee.  He had a known history of a right lateral meniscus tear.  PM&R notes from September 2019 notes he had good relief in bilateral knees with Don Joy braces and on examination his knees had slight effusion, but his gait/mobility were normal.  

Records addressing gout complaints in 2021 included issues with left knee swelling and tenderness noted in January and June 2021 although his left knee had preserved motion noted in January 2021.  The January 2021 note also showed that he used a cane due on the right due to antalgic gait.   

Although the record does show evidence of other knee disability, including meniscal tear noted to have been repaired in the left knee and meniscal cyst in the right knee, both of which required surgeries, the Veteran is only service connected for degenerative arthritis at present, and the file also shows post service meniscal injuries to the knees.  Thus, consideration of other non-arthritic knee disorders, including consideration of a separate rating under DC 5257 based on instability or other diagnostic criteria not based on arthritis and/or limited motion is not warranted in this particular case.  He is also not shown to have ankylosis in either knee so a higher rating under the criteria for ankylosis is not warranted for his right and left knees.  

Entitlement to an initial rating in excess of 10 percent for right knee DJD based on limited flexion 

Throughout the pendency of this appeal the Veteran's right knee disability based on limited motion, specifically flexion, has been evaluated 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5260 for limitation of flexion, with consideration of functional loss due to painful motion under 38 C.F.R. § 4.59 under Diagnostic Codes 5010-5260 for arthritis with limited motion on flexion.  

The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the right knee disability manifested by arthritis and limited motion of flexion. The Board acknowledges the evidence, including his subjective complaints reported in treatment records and the VA examination findings, which show functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time, etc. However, even considering the symptoms and noted functional loss, the degree of additional limitation reflected has not been shown to result in limitation of motion more nearly approximating flexion limited to 30 degrees, the criteria for a 20 percent under Diagnostic Code 5260.  The right knee ranges of motions in the VA examinations at their most severe, as discussed above, in fact are above 60 degrees flexion, the criteria for a 0 percent rating.  This is shown even when factoring in repetitive use and flareups.  Of note, his worst motion on flexion was shown to be 70 degrees for the right knee in the January 2021 VA examination.  

These results were well within the noncompensable ranges for flexion and extension. Although pain was noted in some of these motions, there was no functional loss and no changes after multiple repetitions.  The examiners who were able to quantify the functional losses due to repetitive use over time and/or flareups without speculation, are noted to have continued to describe the flexion to be greater than 45 degrees, the criteria for a 10 percent rating.  The pain noted on motion was already factored into the 10 percent rating.  

Regarding the other medical evidence, many of the treatment records either showed full ranges of motion on flexion, or mild limited flexion or described a limited motion without providing adequate findings to make a determination as to the extent of the loss of motion.  While they showed he had painful function and at times required physical therapy, the evidence in these records fail to show the Veteran to have such limited function due to pain to the extent that a higher evaluation is more nearly approximated. 

The Board has considered the DeLuca criteria. However, a rating higher than 10 percent for right knee arthritis is also not warranted based on functional loss due to pain, weakness, premature or excess fatigability, and incoordination, causing additional disability beyond that reflected in range of motion measurements. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206 - 07. The evidence shows that the Veteran's right knee disabilities are not manifested by weakness on range of motion testing and there are no additional limitations of motion on repeat testing that would equate to a restriction to 30 degrees warranting a 20 percent rating.

The Court has established that flare-ups must be considered. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Guidance on how to evaluate flare-ups has not been particularly clear. However, the Board finds overall wisdom in Mitchell. Flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time.

In sum, 38 C.F.R. § 4.1 provides that the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. Here, there is not shown to be evidence of exacerbation or flare-ups of such severity or of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell, the spirit of 38 C.F.R. § 4.1 and the rule regarding stabilization of ratings.

The Board has further considered whether a higher disability rating is warranted prior to April 26, 2021 based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint. The Board observes, however, that the current 10 percent rating for the right knee arthritis under Diagnostic Code 5260 contemplates the effects of any complaints of pain, fatigue, swelling, weakness, or lack of endurance. Even considering the Veteran's subjective complaints and the objective findings of functional loss due to pain, his limitation of flexion does not approximate flexion limited to 30 degrees, which is required for a higher 20 percent rating under Diagnostic Code 5260. Accordingly, consideration of other factors of functional limitation does not support the grant of a rating in excess of the 10 percent rating already assigned April 26, 2021. See 38 C.F.R. §§ 4.40, 4.45, DeLuca, supra.

2. Entitlement to an initial compensable rating for right knee DJD based on limited extension prior to January 18, 2021 and in excess of 20 percent disabling thereafter

For the period prior to January 18, 2021, the Board finds that as early as May 6, 2014 the evidence supports a 20 percent rating for right knee DJD with separately rated limited extension of the right knee.  This is based on findings from a VA examination of that date.  This May 2014 VA examination showed limited extension of 10 degrees with painful motion noted at 15 degrees for the right knee.  Thus, when factoring the point where pain begins in the right knee, the criteria for a 20 percent rating is shown under Diagnostic Code 5261.  This is the earliest period a compensable rating for limited extension as the prior examination of December 2012 showed full extension with no functional loss including on repetitive use and no flareups.  Likewise, none of the other treatment records prior to May 6, 2014 show evidence suggestive of a compensable rating prior to this date.  The Board concedes that the treatment records that show his right knee flexion to be a full 0 percent rating after the May 6, 2014 examination prior to January 18, 2021.  However, none of these records clearly enunciated the point at which painful motion begins as was done in the May 2014 VA examination. Although a January 2020 VA examination showed full normal extension bilaterally including on repetitive motion and flareups, there was pain noted on extension, including on passive motion, that was not considered to result in functional loss.  However, the January 2020 examiner did not report the range at which pain began.  

Thus, the Board finds that with consideration of application of the benefit of the doubt the Board finds that a staged increase to 20 percent disabling based on painful extension at 10 degrees is warranted from May 6, 2014.  However the evidence does not show the Veteran's right knee extension to warrant a rating in excess of 20 percent disabling at any time, as none of the evidence shows his extension to be limited to 20 degrees.  As previously noted, the January 2021 VA examination estimated that flareups would restrict his extension to 15 degrees.  Thus, flareups have already been factored into his range of motion.  None of the other evidence suggests an extension more restricted than that.  

In sum, with consideration of reasonable doubt the Veteran's right knee extension is shown to be 20 percent disabling as of May 6, 2014 but no sooner.  The preponderance of the evidence is against granting a staged rating in excess of 20 percent disabling.   

3. Entitlement to an initial rating in excess of 10 percent for left knee DJD based on limited flexion 

Throughout the pendency of this appeal the Veteran's left knee disability based on limited motion, specifically flexion has been evaluated 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5260 for limitation of flexion, with consideration of functional loss due to painful motion under 38 C.F.R. § 4.59 under Diagnostic Codes 5010-5260 for arthritis with limited motion on flexion.  

The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the left knee disability manifested by arthritis and limited motion of flexion. The Board acknowledges the evidence including his subjective complaints reported in treatment records and the VA examination findings show that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time, etc. However, even considering the symptoms and noted functional loss, the degree of additional limitation reflected would not result in limitation of motion more nearly approximating flexion limited to 30 degrees, the criteria for a 20 percent under Diagnostic Code 5260.  The left knee knee ranges of motions in the VA examinations at their most severe as discussed above in fact are above 60 degrees flexion, the criteria for a 0 percent rating.  This is shown even when factoring in repetitive use and flareups.  Of note, his worst motion on flexion was shown to be 70 degrees for the right knee in the January 2021 VA examination.  

These results were well within the noncompensable ranges for flexion and extension. Although pain was noted in some of these motions, there was no functional loss and no changes after multiple repetitions.  The examiners who were able to quantify the functional losses due to repetitive use over time and/or flareups without speculation, are noted to have continued to describe the flexion to be greater than 45 degrees, the criteria for a 10 percent rating.  The pain noted on motion was already factored into the 10 percent rating.  

Regarding the other medical evidence, many of the treatment records either showed full ranges of motion on flexion, or mild limited flexion or described a limited motion without providing adequate findings to make a determination as to the extent of the loss of motion.  While they showed he had painful function and at times required physical therapy, the evidence in these records fail to show the Veteran to have such limited function due to pain to the extent that a higher evaluation is more nearly approximated. 

The Board has considered the DeLuca criteria. However, a rating higher than 10 percent for right knee arthritis is also not warranted based on functional loss due to pain, weakness, premature or excess fatigability, and incoordination, causing additional disability beyond that reflected in range of motion measurements. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206 - 07. The evidence shows that the Veteran's left knee disabilities are not manifested by weakness on range of motion testing and there are no additional limitations of motion on repeat testing that would equate to a restriction to 30 degrees warranting a 20 percent rating.

The Court has established that flare-ups must be considered. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Guidance on how to evaluate flare-ups has not been particularly clear. However, the Board finds overall wisdom in Mitchell. Flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time.

In sum, 38 C.F.R. § 4.1 provides that the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. Here, there is not shown to be evidence of exacerbation or flare-ups of such severity or of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell, the spirit of 38 C.F.R. § 4.1 and the rule regarding stabilization of ratings.

The Board has considered whether a higher disability rating is warranted prior to April 26, 2021 based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint. The Board observes, however, that the current 10 percent rating for the left knee arthritis under Diagnostic Code 5260 contemplates the effects of any complaints of pain, fatigue, swelling, weakness, or lack of endurance. Even considering the Veteran's subjective complaints and the objective findings of functional loss due to pain, his limitation of flexion does not approximate flexion limited to 30 degrees, which is required for a higher 20 percent rating under Diagnostic Code 5260. Accordingly, consideration of other factors of functional limitation does not support the grant of a rating in excess of the 10 percent rating already assigned April 26, 2021. See 38 C.F.R. §§ 4.40, 4.45, DeLuca, supra.

Entitlement to an initial compensable rating for left knee DJD based on limited extension prior to January 18, 2021 and in excess of 20 percent disabling thereafter 

For the period prior to January 18, 2021, the Board finds that as early as May 6, 2014 the evidence supports a 10 percent rating for left knee DJD with separately rated limited extension of the left knee.  This is based on findings from a VA examination of that date.  This May 2014 VA examination showed limited extension of 10 degrees with painful motion noted at 10 degrees for the left knee.  Thus when factoring the point where pain begins in the right knee, the criteria for a 10 percent rating is shown under Diagnostic Code 5261.  This is the earliest period a compensable rating for limited extension as the prior examination of December 2012 showed full extension with no functional loss including on repetitive use and no flareups.  Likewise none of the other treatment records prior to May 6, 2014 show evidence suggestive of a compensable rating prior to this date.  The Board concedes that the treatment records that show his left knee flexion to be a full 0 percent rating after the May 6, 2014 examination prior to August 2017, with an August 2017 record showing his extension was 8 degrees short in August 2017 and 6 degrees short in September 2017, which remain within the noncompensable range.  However none of these records clearly enunciated the point at which painful motion begins as was done in the May 2014 VA examination. Although a January 2020 VA examination showed full normal extension bilaterally including on repetitive motion and flareups, there was pain noted on extension, including on passive motion, that was not considered to result in functional loss.  However the January 2020 examiner did not report the range at which pain began.  

Thus the Board finds that with consideration of application of the benefit of the doubt the Board finds that a staged increase to 10 percent disabling based on painful extension at 10 degrees is warranted from May 6, 2014.  However a 20 percent rating is not shown until the January 2021 VA examination when the extension of his left knee was estimated to be limited to 15 degrees during flareups although it was 0 degrees including after 3 repetitions.

The evidence further does not show the Veteran's left knee extension to warrant a rating in excess of 20 percent disabling as of January 18, 2021, as none of the evidence shows his extension to be limited to 20 degrees.  As previously noted, the January 2021 VA examination estimated that flareups would restrict his extension to 15 degrees.  Thus flareups have already been factored into his range of motion.  None of the other evidence suggests an extension more restricted than that.  

Thus with consideration of reasonable doubt the Veteran's left knee flexion is shown to be 10 percent disabling as of May 6, 2014 but no sooner.  The preponderance of the evidence is against granting a staged rating in excess of 10 percent disabling as of May 6, 2014 and in excess of 20 percent disabling as of January 18, 2021.   

Right ankle and left ankle disability legal criteria and factual background

The Veteran contends that he is entitled to a rating in excess of 10 percent for his service-connected right ankle sprain. The Veteran's right ankle disability is rated under 38 C.F.R. § 4.71a , Diagnostic Code 5271, for limitation of motion of the ankle. Under Diagnostic Code 5271, a maximum 20 percent rating is warranted for marked limited motion of the ankle. Id. 

As previously noted, effective February 7, 2021, VA amended the rating criteria.  This includes the criteria for Diagnostic Code 5271. 85 Fed. Reg. 76,453 (Nov. 30, 2020). Under the new criteria, a 10 percent rating is warranted for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion.) A 20 percent rating is warranted for marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.) As this regulatory change was enacted during the pendency of this appeal, the Board will consider both the old and new versions of the rating criteria from the effective date and apply the version most favorable to the Veteran.

Prior to February 7, 2021, neither the Rating Schedule nor the regulations provide definitions for descriptive words such as "mild," or "marked." Sellers v. Wilkie, 30 Vet. App. 157 (2018) (DC 8520 does not define 'mild,' 'moderate,' 'moderately severe,' or 'severe,' or generally associate those terms with specific symptoms"). Rather than applying a mechanical formula, the Board must instead evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6.  Under DC 5271, moderate limitation of motion in the ankle warrants a 10 percent disability rating and marked limitation of motion in the ankle warrants a 20 percent disability rating. See 38 C.F.R. § 4.71a , DC 5271. The maximum schedular rating available for limitation of motion for the ankle is 20 percent. 38 U.S.C. § 1155 ; 38 C.F.R. § 4.87 ; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).

For purposes of VA compensation, normal dorsiflexion of the ankle is zero to 20 degrees and normal ankle plantar flexion is zero to 45 degrees. See 38 C.F.R. § 4.71a , Plate II.

Evidence throughout the pendency of this claim includes multiple VA examinations of the bilateral ankles undertaken in December 2012, May 2014, January 2020, and January 2021 (received in February 2021) to address the severity of the service-connected DJD of the right ankle and left ankle.  Although adjudicated separately, due to the examinations and records tending to address the ankles together, the Board shall first address the evidence addressing both ankles.  These examinations repeatedly showed evidence of no instability with all tests normal. Repeatedly these examinations also showed no ankylosis and no other findings such as shin splints, stress fractures, Achilles' tendonitis, Achilles' tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus) or talectomy (astragalectomy), and no surgeries.  Likewise most of these examinations showed the bilateral ankles disability, although generally painful and resulting in limited motion, to result in various extents of functional loss.  He was without functional loss or flareups as mentioned in December 2012, while the May 2014 VA examination again noted no flareups, functionally he had less movement than normal & Pain on movement.  However there was no impact on his ability to work noted in these earlier examinations.   In the January 2020 examination he was noted to be unemployed, with 0-1 week work time lost in last 12 months and a functional status that his degenerative ankle joint causes pain and fatigability bilaterally.  In the January 2021 examination, he had functional impact due to pain resulting in difficulty with prolonged standing, walking and stairs.

Regarding assistive devices he was noted to use a cane in the May 2014 VA examination including for his ankles, but was not noted to use any assistive devices in any of the other VA examinations.    

Regarding the ranges of motion, his ranges of motion for both ankles were fully normal on plantar flexion and dorsiflexion, without painful motion and unchanged by three repetitions in the first VA examination in December 2012.  In the May 2014 VA examination his right ankle had 35 degrees plantar flexion and 10 degrees dorsiflexion, not worsened after 3 repetitions.  However his right ankle was noted to become painful at 20 degrees plantar flexion while he had painful motion at 5 degrees dorsiflexion.  His left ankle had 30 degrees plantar flexion and 10 degrees dorsiflexion, not worsened after 3 repetitions.  However his left ankle was noted to become painful at 20 degrees plantar flexion while he had painful motion at 10 degrees dorsiflexion.  Again no flareups were described in these earlier examinations to impact his ranges of motion.

In the January 2020 VA examination his right ankle range of motion was 40 degrees plantar flexion and 15 degrees dorsiflexion, while his left ankle range of motion was 45 degrees plantar flexion and 15 degrees dorsiflexion.  There was no pain on motion. These ranges were unchanged after 3 repetitions and no pain on weightbearing or crepitus bilaterally.   The examiner stated that remains no basis to offer additional losses of function or motion when it comes to repeated use over time and the Veteran denied flareups.  There was no pain on passive motion or non-weight bearing bilaterally.  

In the January 2021 VA examination his right ankle plantar flexion was 35 degrees, and dorsiflexion was 15 degrees, unchanged after 3 repetitions, but with pain on both motions, on weightbearing, and on both active and passive motion.  His estimated right ankle range of motion during flareups is 15 degrees plantar flexion and 10 degrees dorsiflexion.   His left ankle plantar flexion was 25 degrees, and dorsiflexion was 20 degrees, unchanged after 3 repetitions, but with pain on both motions, on weightbearing, and on both active and passive motion.  His estimated left ankle range of motion during flareups is 15 degrees plantar flexion and 10 degrees dorsiflexion.   For both his right and left ankle he endorsed severe pain with gout flare ups. Due to pain and swelling associated with gout, there were expected decreases in range of motion.  

Radiographic findings throughout the pendency of this appeal confirm the presence of DJD in the right ankle and left ankle including X-rays of the bilateral ankles from June 2012 and August 2013 which diagnosed mild degenerative joint disease of both ankles and calcific enthesopathy on the right.  In February 2015 X-rays of the bilateral ankles included findings on the right of small Achilles' heel spur, and suspected small ankle joint effusion, and on the left of small anterior tibial and dorsal talar osteophytes and suspected small ankle joint effusion. In November 2016 X-rays of the left ankle and foot diagnosed OA of the tibiotalar and posterior subtalar joints.    

In addition to examinations, the treatment records include ongoing issues with both right and left ankle symptoms including periodic episodes of pain and swelling especially during during gout flareups including in August 2013, September 2013, June 2014, July 2014, February 2015, March 2015, July 2015, April 2015, May 2015, August 2015, September 2015, October 2015, November 2015, December 2015, February 2016, November 2016.  He was seen in the ER in September 2013 for pain and swelling of the left ankle with swelling noted. A June 2014 podiatry note addressing ankle pain bilaterally noted a history of his ankles sporadically giving out and X-rays were noted to show significant osteoarthritic changes in the medial and lateral ankles bilaterally.  Ankle braces in the past had not helped and he needed more support. He was seen in a brace clinic in October 2014 for evaluation for bilateral ankle braces with a prosthetic request sent. A February 2015 podiatry note described migratory pains that included the ankles, with the Veteran ambulating with a cane and a discussion of ordering some new custom ankle braces. Swelling and painful motion of both his ankles was noted in a November 2015 podiatry note, which also noted pain on lateral compression bilaterally.  However his ankles range of motion findings repeatedly were shown to be fully normal in the records noting complaints of pain and swelling including in November 2015, March 2016, September 2017, October 2017,  January 2018, April 2018, May 2018. 

The report of a February 2017 Social Security examination noted the Veteran had issues with multiple joints including his ankles.  On examination there was no tenderness, warmth, swelling, fluid, laxity or crepitus of his ankles or feet.  Range of motion of both ankles bilaterally showed a plantar flexion to 40 degrees and dorsiflexion to 20 degrees.  The impression was arthritis. 

4. Entitlement to an initial compensable rating prior to May 6, 2014 and in excess of 10 percent for right ankle degenerative joint disease from May 6, 2014 

With respect to the ankle, the Board notes that changes have been made to DC 5010 for traumatic arthritis. DC 5010 for traumatic arthritis instructs the rater to assign ratings according to DC 5003, the DC for degenerative arthritis.

Prior to February 7, 2021, DC 5010 addresses disabilities involving traumatic arthritis, and are governed by application of DC 5003, governing degenerative arthritis. Under DC 5003, degenerative arthritis in a joint established by X-ray evidence is rated on the basis of limitation of motion under the Diagnostic Codes governing compensable limitation of motion for that joint. DC 5271 governs the ratings for limitation of motion of the ankle. However, under DC 5003, claimants with arthritis of a major joint or group of minor joints can also receive a 10 percent rating for painful motion that does not cause compensable limitation of motion under the applicable Diagnostic Code for that joint. 38 C.F.R. § 4.71a , DCs 5003, 5010.  The Veteran's right ankle is a major joint.

After review of the evidence the Board finds that from the pendency of this appeal, and prior to May 6, 2014, the Veteran's right ankle disability was noted to have full range of motion including in the December 2012 VA examination which noted full range of motion without flareups and unchanged by repetitive use.  However the records prior to May 2014 are shown to include periodic complaints of pain and swelling especially during gout flareups including in August 2013 and September 2013.  The records also show evidence of arthritis (DJD) in the right ankle prior to May 6, 2014, with the records showing DJD of the right ankle per X-rays from June 2012 and August 2013.  Thus even though his range of motion of the right ankle is noncompensable prior to May 6, 2014, the evidence supports a finding of arthritis based on evidence suggesting painful motion that does not cause a compensable limitation of motion. In view of this, an initial 10 percent rating is warranted for the right ankle disability prior to May 6, 2014.  

However the evidence fails to show that his right ankle arthritis is more than 10 percent disabling prior to or after May 6, 2014 as he is not shown to have occasional incapacitating exacerbations with his arthritis, nor were his ranges of motion, which fell within the 10 percent criteria for moderate limited motion as of the May 2014 VA examination, shown to closely resemble findings of marked limitation of motion.  Even with consideration of the right ankle showing pain on motion and  with consideration of flareups in the examinations from May 2014, January 2020, and January 2021, this would not equate to even the new criteria which indicates that marked limitation of motion is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.  Among these examinations, the worst range of motion was shown to be the painful motion at 20 degrees plantar flexion and 5 degrees dorsiflexion in May 2014 and the 15 degrees plantar flexion and 10 degrees dorsiflexion estimated at flareups in January 2021.  These ranges still fall outside the criteria for marked limitation of motion.

The Board has considered whether any other diagnostic codes related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.71a. In this regard, the evidence of record indicates that the Veteran does not have ankylosis of the ankle, malunion of the os calcis or astragalus, and has not undergone an astragalectomy.

Thus with consideration of reasonable doubt the Veteran's right ankle disorder is shown to be 10 percent disabling from initial entitlement up to of May 6, 2014.  The preponderance of the evidence is against granting a staged rating in excess of 10 percent disabling at any point during this appeal.  

5. Entitlement to an initial compensable rating prior to May 6, 2014 and in excess of 10 percent for left ankle degenerative joint disease from May 6, 2014  

After review of the evidence the Board finds that from the pendency of this appeal, and prior to May 6, 2014, the Veteran's left ankle disability was noted to have full range of motion including in the December 2012 VA examination which noted full range of motion without flareups and unchanged by repetitive use.  However the records prior to May 2014 are shown to include periodic complaints of pain and swelling especially during gout flareups including in August 2013 and September 2013.  The records also show evidence of arthritis (DJD) in the left ankle prior to May 6, 2014, with the records showing DJD of the left ankle per X-rays from June 2012 and August 2013.  Thus even though his range of motion of the left ankle is noncompensable prior to May 6, 2014, the evidence supports a finding of arthritis based on evidence suggesting painful motion that does not cause a compensable limitation of motion. In view of this, an initial 10 percent rating is warranted for the left ankle disability prior to May 6, 2014.  See 38 C.F.R. § 4.71a , DCs 5003, 5010.   

However the evidence fails to show that his left ankle arthritis is more than 10 percent disabling prior to or after May 6, 2014 as he is not shown to have occasional incapacitating exacerbations with his arthritis, nor were his ranges of motion, which fell within the 10 percent criteria for moderate limited motion as of the May 2014 VA examination, shown to closely resemble findings of marked limitation of motion.  Even with consideration of the left ankle showing pain on motion and  with consideration of flareups in the examinations from May 2014, January 2020, and January 2021, this would not equate to even the new criteria which indicates that marked limitation of motion is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.  Among these examinations, the worst range of motion was shown to be the painful motion at 30 degrees plantar flexion and 10 degrees dorsiflexion in May 2014 and the 15 degrees plantar flexion and 10 degrees dorsiflexion estimated at flareups in January 2021.  These ranges still fall outside the criteria for marked limitation of motion.

The Board has considered whether any other diagnostic codes related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.71a. In this regard, the evidence of record indicates that the Veteran does not have ankylosis of the ankle, malunion of the os calcis or astragalus, and has not undergone an astragalectomy.

Thus with consideration of reasonable doubt the Veteran's right ankle disorder is shown to be 10 percent disabling from initial entitlement up to of May 6, 2014.  The preponderance of the evidence is against granting a staged rating in excess of 10 percent disabling at any point during this appeal.  

6. Entitlement to an initial compensable rating prior to March 30, 2017 and in excess of 20 percent as of March 30, 2017 for residuals of ganglion cyst removal (scar) 

As previously noted, this matter is limited to addressing the severity of the residuals of ganglion cysts as the original rating on appeal was for residuals of ganglion cyst based on the criteria for scars.  Furthermore, service connection has been since granted for a right wrist disability other than scars rated on the criteria based on limited motion/function, which is not part of this appeal.  Therefore this decision is limited to the severity of the residuals of ganglion cysts based on criteria for scars.  To the extent functional loss is alleged to be due to scarring, given the separately rated right wrist disability based on limited motion would violate the rules against pyramiding. 38 C.F.R. § 4.7

The Veteran contends that he is entitled to a higher rating for residuals of status post removal ganglion cysts with scarring.  In his original claim of December 2011 he reported constant pain and lack of feeling and numbness in his right hand area where the cysts were removed. In contentions submitted in August 2012, the Veteran described cysts as causing "discomfort, and pain" which the Board broadly construes as including the residual scarring.   

The Veteran's residuals scarring of the ganglion cyst removal is rated under Diagnostic Code 7804 for unstable or painful scars.

The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018.  However, Diagnostic Code 7804 was not changed by the August 13, 2018, amendments.

Under Diagnostic Code 7804, one or two scars that are unstable or painful scars warrants a 10 percent rating.  Three or four scars that are unstable or painful scars warrants a 20 percent rating.  Five or more scars that are unstable or painful warrants a 30 percent rating.  38 C.F.R. § 4.118.  Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Id.  

Evidence throughout the pendency of this claim includes multiple VA examinations of the right wrist undertaken in December 2012, May 2014, March 2017 (received in April 2017), January 2020,  December 2020, and June 2021 to address the severity of the service-connected ganglion cyst residuals.   None of these examinations disclosed the scars to be unstable (ie with frequent loss of covering of skin over the scar), nor have they been shown to be equal to or greater than 39 square cm (6 square inches) or located on head, face, or neck. Nor was any underlying soft tissue damage shown in any of these examinations.  

The December 2012 VA examination diagnosed status post ganglion cyst removal of the right wrist with a history of cyst removal in service.  This examination focused on orthopedic findings and did not address the scarring. 

The report of a May 2014 VA scars examination noted findings of 3 painful scars located on the right wrist.  The pain was described as burning at times.  Examination of the right upper extremity revealed three linear scars with the first one measuring 3.5 cm x 0.5 centimeters (cm); the second scar measuring 2 cm x 1 cm and the third scar measuring 1 cm x 0.5 cm.  There was no impact of these scars on ability to work.  

A March 2017 VA examination noted scarring again with pain at the right wrist area.  The first scar was located at the right wrist excision of ganglion cyst and measured 4 cm. The second scar of the lateral right wrist was 2 cm. Linear. This examination only addressed 2 scars.  Again there was no impact on his ability to work.  

  A March 2018 VA examination of the right upper extremity scars noted the scars to not be painful and noted the first scar to measure 4 cm, the second scar to measure 1.5 cm and the third scar to measure 0.5 cm.  At this time his scar condition was quiescent.  

A January 2020 VA examination of the scars of origin of ganglion wrist removal with the three scars stable and nonpainful with no underlying tissue damage.  The examiner measured the first scar at 4 cm x 0.15 cm: the second scar at 1.5 cm x 0.10 cm and the third scar at 0.5 x 0.1 cm.  

A December 2020 VA examination of the wrist focused on the orthopedic symptoms but also included a discussion of history of ganglion cyst removal with residuals of pain and stiffness.  His scars were not painful or unstable.  The three scars were measured with the first scar measuring 4 cm x 0.15 cm, the second scar measured 1.5 cm x.15 cm, and the third scar measured 0.5 cm x 0.25 cm.  The functional impact was that he was an unemployed/postal service worker with 0-1 week work time lost in last 12 months.  He felt that pain, which he feels is caused by nerve damage, limited his mobility, and increases his pain.  He could not hold and grasp things.  Sometimes, he could not flex and extend his fingers for several minutes.  The affected hand is his dominant hand and it's harder to do things with his left. 

 A June 2021 VA examination focusing on the orthopedic symptoms/gouty arthritis of the wrist also made some findings regarding the scarring.  The scarring was located at the right wrist. The first scar measured 3cm cm. x 0.5 cm; the second scar measured 1.5 cm x 0.5 cm, and the third scar measured 0.9cm x 0.4cm. 

Regarding claimed neurological symptoms, an April 2018 VA neurological disorders examination was noted to focus on a lower extremity neuropathy with no significant neurological findings associated with the right upper extremity to include any findings possibly associated with the ganglion cyst residuals or scarring.   Likewise a January 2020 neurological examination determined that an upper extremity radiculopathy is less likely than not related to service.  Finally a December 2020 VA examination addendum noted the Veteran's complaints that he experiences a lack of feeling and numbness in his right hand due to the removal of right wrist ganglion cyst. However, the examiner noted that there is no evidence in the medical record of any nerve damage, or a wrist neuropathy caused by or due to the ganglion cyst removal. The examiner further pointed to him having a co-morbid, non-service condition of cervical radiculopathy of the right upper extremity which more likely than not accounts for his neuropathy symptoms of the right upper extremity. 

VA and private treatment records and SSA records do not disclose any significant findings concerning the residual scars associated with ganglion cysts.  Regarding functional loss of the wrist, he is already service connected for a right wrist disability based on loss of motion under Diagnostic Code 5215.  Thus it would be duplicative to consider functional loss based on scars.  Further the evidence from the VA examination addressing scars do not disclose any functional loss from the scars.  

Having reviewed the evidence and affording the Veteran the benefit of the doubt, the Board finds that a 20 percent rating is warranted for the ganglion residual scarring from initial entitlement prior to March 30, 2017.  This is based on the evidence showing the Veteran to have 3 residuals scars of the right wrist that have been noted to be painful prior to March 30, 2017.  Except for the March 2017 VA examination which appeared to only note 2 scars, multiple VA examinations have noted the three scars which were noted to all be painful as early as May 2014, while other examinations from 2018, 2020 indicated that the scars were painless. However the Veteran has provided lay statements that these scars caused pain and complained in his June 2017 VA Form I-9 that a VA examiner did not touch his scars, but confirmed that they are painful.

Accordingly based on the evidence showing 3 or more painful scars a 20 percent rating is warranted from initial entitlement prior to March 30, 2017 under Diagnostic Code 7804. 

The preponderance of the evidence is against the assignment of a rating in excess of 20 percent under Diagnostic Code 7804 because the Veteran's ganglion cyst residual scarring is not manifest by five or more scars that are unstable or painful.  

The Board has also considered the other Diagnostic Codes pertaining to scars.   However, the Veteran's scarring is not of the head, face, or neck, is not deep and nonlinear, and is not associated with underlying soft tissue damage.  Although it is superficial and not associated with underlying soft tissue damage, it does not cover an area or areas of 144 square inches or greater.  Therefore, Diagnostic Codes 7800 through 7802, both prior to and from August 13, 2018, are inapplicable.  Finally, the evidence of record shows there are no other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under both pre- and post-August 13, 2018, Diagnostic Code 7805.  

The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects.  Moreover, the Veteran is competent to report observable symptoms, to include [lay reports of record, and his reports are credible.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  However, he does not assert, and/or medical records do not show, that the Veteran's ganglion cyst residuals are manifest by five or more scars that are unstable or painful.

In conclusion, the Board finds that the evidence supports an initial grant of 20 percent disabling prior to March 30, 2017, the preponderance of the evidence is against the Veteran's claim for a disability rating in excess of 20 percent for ganglion cyst residuals of the right wrist manifested by scarring.  In denying a rating in excess of 20 percent disabling, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

REASONS FOR REMAND

1. Gout involving multiple joints is remanded.

Regarding the issues of service connection for gout involving multiple joints, to include the left shoulder, bilateral elbows, bilateral hands, all fingers, bilateral knees, bilateral ankles, bilateral feet, and all toes, and the right shoulder disorder to a right shoulder disorder to include gout and other non-gout related disability, the development thus far undertaken remains inadequate.  A VA general examination conducted in December 2012 by a nurse practitioner noted the diagnosis of gout and a history of the Veteran having reported in 2001-2002 of having pain and swelling in knees and ankles and was later seen at a private hospital  ER and had uric acid test and informed of gout.  This examination failed to address the etiology of the gout.   

He underwent VA examinations in January 2021 (entered in the claims file in February 2021) to address the etiology of these joint complaints and his gout, with all the joint disorders attributed to gout only.  The etiology opinion stated that gout was less likely than not)incurred in or caused by the claimed in-service injury, event, or illness. In the rationale, the examiner was unable to find an encounter in the service treatment records that addressed evaluation or treatment of gout. After his time in service,  the examiner found an ER record that addressed a diagnosis of gout on March 30, 2006, several years after service. Further records of gout were noticed on encounters dated November 19, 2019 and March 6, 2020. None of these records reflected his time spent in service.  A nexus has not been established. The examiner also stated that it is less likely than not veteran's diagnosed gout involving multiple joints is due to pain in knees and ankles in service.  The Board notes that this examination and opinion was from a physician with a specialty in family medicine.  Other examinations, including an October 2020 opinion which linked a right wrist disorder to service and a December 2020 clarification which stated that the weight of medical evidence does not support an etiology of gouty arthritis of the right wrist incurred in or caused by service were conducted by a physician's assistant (PA). 

These unfavorable opinions did not take into account the evidence which show that the Veteran had elevated uric acid findings early as June 2003, when he was being treated for right ankle pain and swelling, recurrent and without a history of injury and had a uric acid reading of 9.5.  Other elevated uric acid readings prior to the March 30, 2006 diagnosis included a January 2004 reading of 9.8, and a November 2005 lab reading of 9.1 when he was diagnosed with acute gout of the left index finger.  Later in January 2006 while being seen for right elbow pain,  he was diagnosed with acute gout with a high uric acid of 8.5.  The March 30, 2006 diagnosis of gout noted by the January 2021 examiner diagnosed this after being treated for right elbow pain with high uric acid findings.   Similar symptoms are shown in the service treatment records including those impacting the knees and the ankles, which are all service connected for DJD.  Among these records a March 2000 record addressing a left ankle injury included complaints that included swelling around the left foot with left toe proximal interphalangeal joint (PIP) with tenderness.   The post service records addressing gout include similar complaints in the ankles, feet and toes including in November 2016.    

Certain conditions, such as hypertension and arthritis, including gouty arthritis, will be presumed to have been incurred in service if manifested to a compensable degree within 1 year after service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

Although not expressly listed as a chronic condition, gout is a form of arthritis, and arthritis is a listed chronic disease. VA has officially stated that "[g]out, for example, which is a type of arthritis in which uric acid crystals are deposited around joints, usually involves acute inflammation of only a single joint at a time, rather than the widespread joint involvement common in rheumatoid arthritis." 68 Fed. Reg. 7008 (February 11, 2003). The rating schedule for VA disabilities also explicitly instructs that gout under DC 5017 is to be rated under DC 5002, arthritis rheumatoid (atrophic), and not to be rated based on limitation of motion like other forms of arthritis. 38 C.F.R. § 4.71a. VA's categorization of gout as a form of arthritis is in accordance with prevailing medical principles.

Gout is "a group of disorders of purine metabolism, manifested by various combinations of (1) hyperuricemia and uric acid calculi;(2) recurrent acute inflammatory arthritis induced by crystals of monosodium urate monohydrate; and (3) tophaceous deposits of these crystals in and around the joints of the extremities, sometimes causing crippling destruction of the joints." Dorland's Illustrated Medical Dictionary, 799 (32nd Ed. 2012). Miles v. Synder, No. 16-3159, (Joint Motion for Partial Remand) (U.S. Vet. App. Feb. 10, 2017). Gout is a type of arthritis in which uric acid crystals are deposited around joints, usually involves acute inflammation of only a single joint at a time, rather than the widespread joint involvement common in rheumatoid arthritis. 68 Fed. Reg. 7008 (February 11, 2003).

Given that the Veteran was shown to have elevations in uric acid readings within a two year period after service, with an early elevated reading shown in June 2003 while being treated for right ankle symptoms of pain and swelling, and the fact that he had similar symptoms of the joints including the knees and ankles in service (and which service connection for DJD is in effect) a medical opinion should be obtained by a rheumatologist to address this matter.  

2. Right shoulder to include gout and non-gout disorder is remanded.

Further in regard to the right shoulder disorder, there is a history of a preexisting right shoulder injury with pre-service records showing he was treated in August 1990 for a right shoulder injury after he fell playing basketball with a diagnosis of AC separation made. Another record from August 1990 showed the Veteran to have injured his right shoulder playing football and he was diagnosed with AC arthritis secondary to AC separation with recommended Mumford surgical procedure.   .  An August 1993 medical  prescreening record prior to service gave a history of bone separation of right shoulder prior to service, and other records from August 1993 gave a history of right shoulder separation, which disqualified him from Army, but he now said he had no pain: with an impression of no abnormality.     Post service he continued with right shoulder issues with the Veteran having undergone surgery for a right shoulder rotator cuff tear and labral tear in February 2011.    Years later a June 2018 right shoulder MRI report noted constant pain and previous injuries to the right shoulder with surgery for a labrum tear and findings of right shoulder AC joint arthrosis.   

A preexisting disorder will be considered to have been aggravated by active duty service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progression of the disorder. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Thus on remand the examiner should also address whether in addition to gout, a preexisting right shoulder disorder other than gout was aggravated by service. 

The matters are REMANDED for the following action:

1. Forward this case to a rheumatologist to obtain an addendum opinion. Based on a review of the record, including any additionally received treatment records, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently diagnosed gout impacting multiple joints, including but not limited to the left shoulder, right shoulder, bilateral elbows, bilateral hands, all fingers, bilateral knees (other than the already service connected DJD), bilateral ankles (other than the already service connected DJD), bilateral feet, and all toes was incurred in or is related to active service; or was manifested within the first post-service year after his discharge from service in July 2001. In rendering this opinion, the examiner should address STRs addressing treatment for joint pains including the ankles, feet, and shoulders, as well as the records showing elevated uric acid readings as early as June 2003 coupled with joint pain complaints. 

(Continued on the next page)

 

Regarding the right shoulder the examiner should also provide an opinion whether any currently diagnosed right shoulder disorder other than from gout preexisted service and if so, was aggravated beyond the natural progression of the disorder by active duty service. The examiner should specifically state whether any preexisting right shoulder disorder clearly and unmistakably was not aggravated during service.

A rationale for all opinions expressed must be provided.

 

 

Eric S. Leboff

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Eckart

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.